Eric Wang Explains the Real Threat from Russian Social Media (and it’s not a Trump Presidency)

Eric Wang Explains the Real Threat from Russian Social Media (and it’s not a Trump Presidency)

In today’s USA Today, the always perspicacious Eric Wang has a concise and easily-readable explainer about the Russian effort to use social media to exacerbate social tensions in the United States: “Russia isn’t out to decide our elections, they want to divide us and damage our country”.

And his take on the proposed “solutions?” The cure is worse than the disease. Or put another way, those who want to silence Americans’ advocacy discourse in the entirely-mistaken belief that they are preventing some foreign takeover are actually doing what they claim to be defending against.

Some excerpts:

The reports reveal how the Russian efforts go far beyond election interference. The real goal is outright sabotage by tearing apart America’s social fabric.

Since 2016, states such as New York and Maryland have enacted laws that purport to address Russian interference with U.S. elections. Members of Congress also have justified bills such as the “Honest Ads Act” and “DISCLOSE Act” on this basis. This focus misses the proverbial forest for the trees. As a result, the legislative reaction is misguided and unnecessarily burdens core First Amendment speech. Ironically, these efforts advance Russia’s sabotage.

Most of the legislative response has focused on amending campaign finance laws. The measures propose new reporting, disclaimer and record-keeping requirements for paid online ads that legislators deem to have some tangential relationship with elections.

These far-reaching bills and laws are an extremely poor fit for the Russian threat. They unjustifiably burden Americans’ core First Amendment speech rights. Social media platforms have stopped selling political ads in Maryland and Washington state in response to these laws. The laws’ infirmities make them susceptible to constitutional challenges such as the one brought by several media outlets against the Maryland law, which is pending in a federal court.

Even so, lawmakers cannot address the problem without first correctly identifying it. So far, legislators have failed at even this initial step. Instead, they have rushed to pass laws burdening Americans’ free-speech rights.

This reaction has weakened one of this country’s great strengths and has unwittingly advanced Russia’s agenda.





“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

UPDATE: The Supreme Court of the United States has denied review of both of these cases. The petition in Zimmerman v. City of Austin was denied on December 10, 2018. The petition in Lair v. Mangan was denied on January 14, 2019. As usual, there was no explanation for the denials.

In the last week, PPLI has filed two amicus curiae briefs in the U.S. Supreme Court dealing with the “appearance of corruption” rationale for imposing limits on campaign contributions. One brief, with the Institute for Free Speech, was filed on August 16, 2018, in Zimmerman v. City of Austin, Texas, No. 18-93; the other brief was filed on August 23 in Lair v. Mangan, No. 18-149.

The briefs look at a hidden, but vitally important issue in these cases. Much of the debate over whether governments can limit campaign contributions is over “corruption,” the exchange of official actions for gifts to the officials. But there is another, related but less-discussed issue: the “appearance of corruption,” which is measured by public confidence in the American democratic system. The evidentiary standard for showing corruption has been recently debated at the Supreme Court and limited to actual quid pro quo corruption. But the lower courts sometimes simply rely on public opinion polls or campaign consultants’ testimony about public opinion to justify campaign limits.

The PPLI amicus briefs ask the Supreme Court to review these cases to be sure that the public opinion polls and other methods used to test an “appearance of corruption” meet the most up-to-date evidentiary standards for justifying contribution limits.

Complete information can be found on this Litigation page.

Facebook’s “Hate Speech” Algorithm Rejects the Declaration of Independence as “Hate Speech”

Facebook’s “Hate Speech” Algorithm Rejects the Declaration of Independence as “Hate Speech”

I’ve written several times now about the problems that Facebook and other social media giants will have trying to use machine language to police and weed out “hate speech,” so it’s not surprising that, as NBC News and other media reported, Facebook banned the Declaration of Independence just before July 4th. The Vindicator, “The oldest continuously printing news source in South Liberty County [Texas]since 1887,”

challenged its Facebook followers to read the Declaration of Independence. To make it a little easier to digest that short but formidable historic document, the newspaper broke the Declaration down into 12 small bites and one to post each morning from June 24 to July 4. The first nine parts posted as scheduled, but part 10, consisting of paragraphs 27-31 of the Declaration, did not appear. Instead, The Vindicator received a notice from Facebook saying that the post “goes against our standards on hate speech.” …

The removal of the post was an automated action. If any human being working at Facebook were to review it, no doubt the post would be allowed, and the editor has searched for a means of contacting Facebook for an explanation or a opportunity to appeal the post’s removal, but it does not appear the folks at Facebook want anyone contacting them. Or, at least, they do not make it easy. The Vindicator has sent Facebook a feedback message. That being the only way found so far to contact the company. …

So, the removal of this morning’s post puts The Vindicator in a quandary about whether to continue with posting the final two parts of the Declaration scheduled for tomorrow and Wednesday. Should Facebook find anything in them offensive, The Vindicator could lose its Facebook page.

This is frustrating, but your editor is a historian, and to enjoy the study of history a person must love irony. It is a very great irony that the words of Thomas Jefferson should now be censored in America.

On July 3, after national media began covering the story, Facebook did reinstate the Declaration of Independence. The Vindicator posted an update:

UPDATE: Earlier this evening, July 3, the good folks at Facebook restored the post that is the subject of this article. An email from Facebook came in a little after The Vindicator’s office closed today and says the following:

“It looks like we made a mistake and removed something you posted on Facebook that didn’t go against our Community Standards. We want to apologize and let you know that we’ve restored your content and removed any blocks on your account related to this incorrect action.”

The Vindicator extends its thanks to Facebook. We never doubted Facebook would fix it, but neither did we doubt the usefulness of our fussing about it a little.

This point of this story is not that the algorithm made a mistake; that was expected. After all, Facebook has already flagged a number of legitimate posts as “hate speech.”

The real story is that Facebook has failed on a key element of its April 24 announcement of its plan to label and reject “hate speech:” what happens when someone’s legitimate posting is flagged as “hate speech?” Facebook said it would have an “appeals” process, but that process would be “built out” “over the coming year.” But clearly, in the Vindicator’s case, that process did not work as intended. Facebook described its process as:

As a first step, we are launching appeals for posts that were removed for nudity / sexual activity, hate speech or graphic violence.

Here’s how it works:

  • If your photo, video or post has been removed because we found that it violates our Community Standards, you will be notified, and given the option to request additional review.

  • This will lead to a review by our team (always by a person), typically within 24 hours.

  • If we’ve made a mistake, we will notify you, and your post, photo or video will be restored.

But at least so far, Facebook’s “build out” does not appear to include that very important point: there isn’t an “option to request additional review.” Facebook explains that it reviews millions of posts every day using its automated screening system, and admits that it will make mistakes.

But should Facebook automatically review its reviewers? Or simply wait until someone can interest the media in its mistakes before acting?



Supreme Court Reverses Injunctions Against “Travel Ban,” Rejects Use of Campaign Statements

Supreme Court Reverses Injunctions Against “Travel Ban,” Rejects Use of Campaign Statements

Last year, the Public Policy Legal Institute and the Institute for Free Speech filed “friend of the court” briefs in the Supreme Court of the United States challenging an opinion of the U.S. Court of Appeals for the Fourth Circuit that hailed a “welcome restraint” of campaign speech that exhibited religious bias. Those filings were part of a long train of legal reviews of the Trump Administration’s series of Executive Orders imposing a ban on admissions of persons from several countries which did not have accurate or secure identification systems or were sponsors of terrorism. In the challenge to the Fourth Circuit’s “welcome restraint” theory, the Supreme Court vacated and remanded the troublesome Fourth Circuit’s opinion, and on remand, the Fourth Circuit said that it did not rely on campaign speech to reach its next decision (but it actually did).

Today, June 26, 2018, the Supreme Court of the United States issued its final decision in this long line of cases. The Court reversed the lower court decisions enjoining the “travel ban” and sent the cases back to the lower courts.

The majority opinion, written by Chief Justice John Roberts, said, in part:

At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. …

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. …

Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. …

For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. …

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable
by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. …

Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.

Trump v. Hawaii, No. 17-965 (June 26, 2018).

Media coverage, as is common, has focused on the first part of the opinion, citing Chief Justice Roberts’ comment that “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” But for lawyers, the real meat of the decision is in the standard of review to be applied (which actually explains why this part of Roberts’ opinion was so succinct).

The new standard of review is rational basis, which is restated here as: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”

So, if the biased campaign statements are the only grounds for the official action, or the policy itself is “inexplicable by anything but animus,” the courts can look to the campaign statements to see if there is a violation. But if the facial explanation both shows an important governmental interest and is readily related to legitimate state interests, the Court, at least in national security questions, won’t look to campaign statements.

In the “travel ban” case, there was sufficient national security interest to justify the ban on admissions from certain countries with demonstrated security concerns even in the face of Presidential statements that might implicate religious bias.